actual service. These are not contemporaneous acts, nor necessarily identical in their constitutional bearings. The president is not commander-in-chief of the militia, except when in actual service; and not, when they are merely ordered into service. They are subjected to martial law, only, when in actual service, and not merely when called forth, before they have obeyed the call. The act of 1795, and other acts on this subject, manifestly contemplate and recognise this distinction. To bring the militia within the meaning of being in actual service, there must be an obedience to the call, and some acts of organization, mustering, rendezvous, or marching, done in obedience to the call, in the public service.1 § 1209. But whether the power is exclusive in congress to punish delinquencies in not obeying the call on the militia, by their own courts-martial, has been a question much discussed, and upon which no inconsiderable contrariety of opinion has been expressed. That it may, by law, be made exclusive, is not denied. But if no such law be made, whether a state may not, by its own laws, constitute courts-martial to try and punish the delinquencies, and inflict the penalties prescribed by the act of congress, has been the point of controversy. It is now settled, that, under such circumstances, a state court-martial may constitutionally take cognizance of, and inflict the punishment. But a state cannot add to, or vary the punishments inflicted by the acts of congress upon the delinquents.2 1 Houston v. Moore, 5 Wheat. R. 1, 17, 18, 20, 53, 60, 61, 63, 64; Rawle on Const. ch. 13,p. 159. 2 Houston v. Moore, 5 Wheat. R. 1, 2, 3, 24, 28, 44, 69 to 75; Rawle on Const. ch. 13, p. 158, 159; Houston v. Moore, 3 Serg. & Rawle, 169; Duffield v. Smith, 3 Serg. & R. 590; 1 Kent's Comm. Lect. 12, p. 248, 249, 250; Serg. on Const. ch. 28, [ch. 30]; Meade's case, 5 Hall's Law Journ. 536; Bolton's case, 3 Serg. & Rawle, 176, note. § 1210. A question of another sort was also made during the late war with Great Britain; whether the militia, called into the actual service of the United States, were to be governed and commanded by any officer, but of the same militia, except the president of the United States; in other words, whether the president could delegate any other officer of the regular army, of equal or superior rank, to command the militia in his absence. It was held in several of the Eastern states, that the militia were exclusively under the command of their own officers, subject to the personal orders of the president; and that he could not authorize any officer of the army of the United States to command them in his absence, nor place them under the command of any such officer.1 This doctrine was deemed inadmissible by the functionaries of the United States. It has never yet been settled by any definitive judgment of any tribunal competent to decide it. If, howevever, the doctrine can be maintained, it is obvious, that the public service must be continually liable to very great embarrassments in all cases, where the militia are called into the public service in connexion with the regular troops. / 18 Mass. Rep. Supp. 549, 550; 5 Hall's Amer. Law Journ. 495; 1 Kent's Comm. Lect. 12, p. 244 to 247. 21 Kent's Comm. Lect. 12, p. 244 to 247. 66 CHAPTER XXIII. POWER OVER SEAT OF GOVERNMENT AND OTHER CEDED PLACES. §1211. THE next power of congress is, " to exercise "exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may, by "cession of particular states and the acceptance of congress, become the SEAT OF THE GOVERNMENT of the "United States; and to exercise like authority over all places purchased by the consent of the legislature of "the state, in which the same shall be, for the erection "of FORTS, MAGAZINES, ARSENALS, and other needful "BUILDINGS." 66 § 1212. This clause was not in the original draft of the constitution ; but was referred to a committee, who reported in its favour; and it was adopted into the constitution with a slight amendment without any apparent objection.1 § 1213. The indispensable necessity of complete and exclusive power, on the part of the congress, at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, and one might say of the World, by virtue of its general supremacy. Without it not only the public authorities might be insulted, and their proceedings be interrupted with impunity; but the public archives might be in danger of violation, and destruction, and a dependence of the members of the national government on the state authorities for protection in the discharge of their functions be created, which would bring on the national councils the imputation of being subjected 1 Journ. of Convent. 222, 260.4328, 329, 358. to undue awe and influence, and might, in times of high excitement, expose their lives to jeopardy. It never could be safe to leave in possession of any state the exclusive power to decide, whether the functionaries of the national government should have the moral or physical power to perform their duties. It might subject the favoured state to the most unrelenting jealousy of the other states, and introduce earnest controversies from time to time respecting the removal of the seat of government. § 1214. Nor can the cession be justly an object of jealousy to any state; or in the slightest degree impair its sovereignty. The ceded district is of a very narrow extent; and it rests in the option of the state, whether it shall be made or not. There can be little doubt, that the inhabitants composing it would receive with thankfulness such a blessing, since their own importance would be thereby increased, their interests be subserved, and their rights be under the immediate protection of the representatives of the whole Union." It is not improbable, that an occurrence, at the very close of the revolutionary war, had a great effect in introducing this provision into the constitution. At the period alluded to, the congress, then sitting at Philadelphia, was surrounded and insulted by a small, but insolent body of mutineers of the continental army. Congress applied to the executive authority of Pennsylvania for defence; but, under the ill-conceived constitution of the state at that time, the executive power was vested in a council consisting of thirteen members; and they possessed, or exhibited so little energy, and such apparent intimida. tion, that congress indignantly removed to New-Jersey, 1 The Federalist, No. 43; 2 Elliot's Deb. 92, 321, 322, 326. 13 whose inhabitants welcomed them with promises of defending them. Congress remained for some time at Princeton without being again insulted, till, for the sake of greater convenience, they adjourned to Annapolis. The general dissatisfaction with the proceedings of Pennsylvania, and the degrading spectacle of a fugitive congress, were sufficiently striking to produce this remedy. Indeed, if such a lesson could have been lost upon the people, it would have been as humiliating to their intelligence, as it would have been offensive to their honour. § 1215. And yet this clause did not escape the common fate of most of the powers of the national government. It was represented, as peculiarly dangerous. It may, it was said, become a sort of public sanctuary, with exclusive privileges and immunities of every sort. It may be the very spot for the establishment of tyranny, and of refuge of the oppressors of the people. The inhabitants will be answerable to no laws, except those of congress. A powerful army may be here kept on foot; and the most oppressive and sanguinary laws may be passed to govern the district.2 Nay, at the distance of fourteen years after the constitution had quietly gone into operation, and this power had been acted upon with a moderation, as commendable, as it ought to be satisfactory, a learned commentator expressed regret at the extent of the power, and intimated in no inexplicit terms his fears for the future. "A system of 1 Rawle on Const. ch. 9, p. 112, 113. 2 2 Elliot's Debates, 320, 321, 323, 324, 325, 326; Id. 115. — Amendments limiting the power of congress to such regulations, as respect the police and good government of the district, were proposed by several of the states at the time of the adoption of the constitution. But they have been silently abandoned. 1 Tucker's Black. Comm. App. 276, 374. |